WTO Dispute Settlement Mechanism(3)/刘成伟(43)
IV Examination of the New Measure in Its Totality and in Its Application
While during the appeal in US-Shrimp (DS58) (21.5), Malaysia argues that the Panel improperly limited its analysis to the recommendations and rulings of the DSB, and thus failed to fulfill its mandate under Art. 21.5 of the DSU because it did not examine the consistency of the United States implementing measure with the relevant provisions of the GATT 1994. Malaysia argues as well that the Art. 21.5 Panel erroneously based its analysis entirely on the Appellate Body’s Report in the original proceedings. The Appellate Body observes that “Malaysia's appeal on this point goes to the heart of what a panel is required to do in proceedings under Article 21.5 of the DSU”,9 and they continue to rule that: 10
“As we ruled in our Report in Canada - Aircraft (21.5), panel proceedings pursuant to Article 21.5 of the DSU involve, in principle, not the original measure, but a new and different measure that was not before the original panel. Therefore, ‘in carrying out its review under Article 21.5 of the DSU, a panel is not confined to examining the 'measures taken to comply' from the perspective of the claims, arguments and factual circumstances that related to the measure that was the subject of the original proceedings’.
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